Subject:Judicial Protection of Shareholders'Rights and Interests from the Dual Perspective of Substantive and Procedural Law——An Analysis Based on"Shareholder Derivative Suit"
The Company law entrusts shareholders with the right of action to prevent harm from abuse of rights by other sharehold-ers.Shareholder derivative suit has become an important tool in resolving the conflict of shareholder interests in closely held cor-porations.Judicial practice shows that the necessity of the procedural prerequisites,attribution of the compensation and the scope of the judgment's subjective effects are disputed both in substantive and procedural aspects.In the view of substantive law,the theoretical assumption designed for public corporations is not completely compatible with closely held corporations whose separa-tion of ownership and operation is incomplete,resulting in the failure of derivative suit's function as a mechanism for protecting the interests of corporations and shareholders,and the shareholders'unwillingness to file the litigation.In the view of procedural law,as a special litigation mechanism,the derivative suit should be integrated into the whole theoretical system of civil procedure law.However,existing litigation undertaking theories can't fully explain the dual interests of the derivative suit in closely held corporations,and are incapable of properly allocating the right of action to specific shareholders.Besides,there is also a gross mismatch between the attribution of the litigation benefits and the bearer of the litigation costs.In solving the internal governance problem in closely held corporations,it is necessary to apply penetrating judicial protection for shareholders'rights and interests,allow judges to exempt the plaintiff from procedural prerequisites,and grant plaintiff the right to claim damages based on the shareholding rate,so as to offer a sufficient relief to minority shareholders.
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